Locke and Rosenberger

Rick Duncan nebraskalawprof at yahoo.com
Thu Apr 15 13:08:03 PDT 2004

I recently taught Locke v. Davey, and I was struck by
the cursory rejection of the Rosenberger "viewpoint
discrimination" argument. The Chief addresses this
argument in fn 3 and merely says that the law does not
violate the viewpoint discrimination rule because "the
Promise Scholarship is not a forum for speech" but
rather a program to assist needy students with the
costs of obtaining a college degree.

Hmmm. Let's assume a state adopts a promise
scholarship program that is available to all needy
students who meet certain income and gpa requirements
except those "pursuing a degree in women's studies
from a feminist perspective?" Does this law really
pass scrutiny under the free speech clause because the
program is not a forum for speech, but rather a
financial assistance program for needy students?

This doesn't seem right to me, but it seems to follow
from fn 3 of Locke. No?

Rick Duncan

Rick Duncan 
Welpton Professor of Law 
University of Nebraska College of Law 
Lincoln, NE 68583-0902

"When the Round Table is broken every man must follow either Galahad or Mordred: middle things are gone." C.S.Lewis, Grand Miracle

"I will not be pushed, filed, stamped, indexed, briefed, debriefed, or numbered."  --The Prisoner

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